Court of Claims Act 1840 No 12a (NSW)
No. VII.
An Act to empower the Governor of New South Wales to appoint Commissioners with certain powers to examine and report on Claims to Grants of Land in New Zealand. [4th August, 1840.]
WH E R E A S in various parts of the Islands of New Zealand comprehended within the limits of the Territory and Govern ment of New South Wales tracts or portions of land are claimed to be held by various individuals by virtue of purchases or pretended purchases gifts or pretended gifts conveyances or pretended con veyances or other titles either mediately or immediately from the chiefs or other individuals of the aboriginal tribes inhabiting the same and whereas no such individual or individuals can acquire a legal title to or permanent interest in any such tracts or portions of land by virtue of any gift purchase or conveyance by or from the chiefs or other individuals of such aboriginal tribes as aforesaid and whereas Her Majesty hath by Instructions under the hand of one of Her Majesty's Principal Secretaries of State dated the fourteenth day of August one thousand eight hundred and thirty-nine declared Her Royal will and pleasure not to recognise any titles to land in New Zealand which do not proceed from or are not or shall not be allowed by Her Majesty and whereas it is expedient and proper to put beyond doubt the invalidity of all titles to land within the said Islands of New Zealand founded upon such purchases or pretended purchases gifts or pretended gifts conveyances or pretended convey ances or other titles from the said uncivilized tribes or aboriginal inhabitants of New Zealand Be it therefore declared and enacted by His Excellency the Governor of New South Wales with the advice of the Legislative Council of the said Colony That all titles to land in New Zealand which are not or may not hereafter be allowed by Her Majesty are and shall be absolutely null and void.
2. And whereas Her Majesty hath in the said Instructions been pleased to declare Her Majesty's gracious intention to recognise claims to lands which may have been obtained on equitable terms from the said chiefs or aboriginal inhabitants of the said Islands of New Zealand and which may not be prejudicial to the present or prospective interests of such of Her Majesty's subjects as may resort to or settle in the said Islands and whereas it is expedient and necessary that in all cases wherein lands are claimed to be held by virtue of any purchase or con- veyance or any other title whatsoever from the said chiefs or tribes or any aboriginal inhabitant whomsoever of the said Islands a strict inquiry be instituted into the mode in which such lands have been acquired and also into the extent and situation of the same and also to ascertain all the circumstances upon which such claims may be founded Be it therefore enacted That it shall and may be lawful for the said Governor of New Sou th Wales to issue one or more commission or commissions and thereby to appoint Commissioners w h o shall have full power and authority to hear examine and report on all claims to grants of land in New Zealand and each of such Commissioners shall before proceeding to act as such take and subscribe before one of the Judges of the Supreme Court of New South Wales or before such person resident in New Zealand as the Chief Justice for the time being of the said Court shall under his hand and seal nominate and appoint for that purpose the oath set forth in the Schedule to this
Act
Act annexed marked A and the Colonial Secretary of New South Wales shall cause the said oaths and also the oath to be taken by the Secretary to the said Commissioners as hereinafter provided to be respectively recorded in his office.
3. And be it enacted That some fit and proper person or persons may from time to time be appointed by the said Governor to perform the duties of Secretary or Secretaries to the said Commis sioners should the said Governor deem the appointment of such Secretary or Secretaries to be necessary and the said Secretary or Secretaries shall before exercising any of the duties of his or their office take and subscribe before one of the Judges of the said Supreme Court or before such person resident in New Zealand as the Chief Justice for the time being of the said Court shall under his hand and seal nominate and appoint for that purpose the oath set forth in the Schedule to this Act annexed marked B.
4. And be it enacted That it shall be lawful for the Governor of the said Colony as often as to His Excellency shall seem fit to refer the claims of all persons making application to have grants of land within the said Islands of New Zealand executed to them in due form of law in fulfilment of Her Majesty's gracious intention to the said Commissioners to the end that all such claims may be duly examined and reported upon for the information and guidance of the said Governor And the said Commissioners or any two of them shall proceed to hear examine and report on such claims in manner herein after mentioned Provided always that nothing herein contained shall authorize the said Commissioners to receive or report upon any claims but such as shall be referred to them by the Governor as aforesaid And provided further that all claims which shall not be preferred in writing to the Colonial Secretary of New South Wales within six months after the passing of this Act shall be absolutely null and void unless it shall be made to appear to the satisfaction of the said Governor that any claimant or claimants shall not by reason of absence from the Colony or other sufficient cause have been able to prefer his or their claims within the said time of six months in which case it shall be lawful for the said Governor at any time within a further term of six months to refer such claim or claims to the said Commissioners who shall have power and authority to receive and report upon the same as in other cases.
| 5. And be it enacted That in hearing and examining all claims to grants as aforesaid and reporting on the same the said Commissioners | shall be guided by the real justice and good conscience of the case |
| without regard to legal forms and solemnities and shall direct themselves by the best evidence they can procure or that is laid before them whether the same be such evidence as the law would require in other cases or not and that the said Commissioners shall in every case inquire into and set forth so far as it shall be possible to ascertain the same the price or valuable consideration with the sterling value thereof paid for the lands claimed to any of the said chiefs or tribes or any aboriginal inhabitants of New Zealand as well as the time and manner of payment and the circumstances under which such payment was made without taking into consideration the price or valuable consideration which may have been given for the said lands by any subsequent purchaser or to any other person or persons save such chiefs or tribes or aboriginal inhabi tant as aforesaid and shall also inquire into and set forth the number of acres which such payment would have been equivalent to according to the rates fixed in a Schedule marked D annexed to this Act and if the said Commissioners or any two of them shall be satisfied that the person or persons claiming such lands or any part thereof is or are entitled according to the declaration of Her Gracious Majesty as afore |
said
said to hold the said lands or any part thereof and to have a grant thereof made and delivered to such person or persons under the Great Seal of the said Colony they the said Commissioners shall report the same and the grounds thereof to the said Governor accordingly and shall set forth the situation measurement and boundaries by which the said lands or portions of land shall and may be described in every such grant so far as it shall be possible to ascertain the same Provided however that no grant of land shall be recommended by the said Commissioners which shall exceed in extent two thousand five hundred and sixty acres unless specially authorized thereto by the Governor with the advice of the Executive Council or which shall comprehend any head land promontory bay or island that may hereafter be required for any purpose of defence or for the site of any town or for any other purpose of public utility nor for any land situate on the sea-shore within one hundred feet of high-water mark Provided also that nothing herein contained shall be held to oblige the said Governor to make and deliver any such grant as aforesaid unless His Excellency shall deem it proper so to do.
6. Provided nevertheless and be it enacted That the said Com missioners shall not propose to grant to any claimant whomsoever any land which may in the opinion of the majority of the said Commis sioners or of the majority of the Commissioners appointed to investigate the demand of such claimant be required for the site of any town or village or for the purposes of defence or for any other purpose of public utility nor shall they propose to grant to any individual any land of a similar character which they may be directed to reserve either by the Governor of New South Wales or the Lieutenant Governor of New Zealand but that in every case in which land of such description would otherwise form a portion of the land which the Commissioners would propose to grant to the claimant they shall in lieu of such land propose to grant to him or her a compensa tion in other land of fair average value at the rate of not less than five nor more than thirty acres of land for every acre required to be reserved either for the site of a village or township or for the purposes of defence or for any other purpose of public utility as aforesaid.
7. And be it enacted That the meetings of the said Commis sioners shall be holden in such manner as the said Governor shall from time to time appoint and the said Commissioners shall proceed with all due dispatch to investigate and report upon the claims referred to them.
8. And be it enacted That it shall and may be lawful for the
said Commissioners upon receiving any such claim as aforesaid to appoint a day by notice in the New South Wales Government Gazette or in any gazette or newspaper published in New Zealand for inquiring into such claim and to issue summonses requiring all such persons as shall therein be named to appear before the said Commissioners at the day and time therein appointed to give evidence as to all matters and things known to any such person respecting such claim and to produce in evidence all deeds instruments or writings in the possession or control of any such persons which they might by law be required and compelled to give evidence of or to produce in evidence in any cause respecting the like matters depending in the Supreme Court of New South Wales in so far as the evidence of such persons and the production of such deeds instruments and writings shall be necessary for the due investigation of such claim depending before the said Commissioners and that all such evidence shall be taken down in writing in presence of the witnesses respectively giving the same and shall at the time be signed by them or in case of their refusing or being unable to sign by the Secretary to the said
Commissioners
Commissioners and that all such evidence shall be given on oath which oath it shall and may he lawful for the said Commissioners to administer to every person appearing before them to give evidence and that any person taking a false oath in any case wherein an oath is required to be taken by this Act shall be deemed guilty of wilful and corrupt perjury and being thereof duly convicted shall he liable to such pains and penalties as by any Law now in force any person convicted of wilful and corrupt perjury is subject and liable to Provided always that in all cases in which it may be necessary to take the evidence of any aboriginal native who shall not be competent to take an oath it shall he lawful for the said Commissioners to receive in evidence the statement of such aboriginal native subject to such credit as it may be entitled to from corroborating or other circumstances.
9. And be it enacted That whenever any person who being
duly summoned to give evidence before the said Commissioners as aforesaid his or her reasonable expenses having been paid or tendered and not having any lawful impediment allowed by the said Commis sioners shall fail to appear at the time and place specified in such summons or after appearing shall refuse to be sworn or to answer any lawful question or to produce any deed instrument or writing which lie or she may lawfully be required to produce or without leave obtained from the said Commissioners shall wilfully withdraw from further examination without a satisfactory excuse being given to the said Commissioners for such default or appearing shall refuse or decline to be examined or give evidence according to law touching the matter in question it shall and may be lawful for the said Commissioners and they are hereby authorized and empowered to issue their warrant for the apprehension of such person in order that he may be brought before them to give evidence touching such matter as shall be in question for which he shall have been summoned as aforesaid and it shall further be lawful for the said Commissioners if such person shall not shew sufficient cause to the satisfaction of such Commissioners for such default to commit such person to prison there to remain without bail or mainprize for any time not exceeding twenty-one days or in lieu of such imprisonment to pay such fine not exceeding one hundred pounds as the said Commissioners shall impose which fine shall go towards the expenses incurred in carrying the provisions of this Act into effect.
10. And be it enacted That the said Commissioners and their Secretary shall and may receive for their own use such salaries as the
Governor of New South Wales for the time being shall direct and
appoint which salaries respectively it shall and may be lawful for the said Governor to order and direct by warrant under his hand to be paid from and out of the revenues of New Zealand and the same shall be the whole of the remuneration of the said Commissioners and Secretary and every of them respectively for and in respect of their said offices.
11. And be it enacted That there shall be paid to the said
Commissioners or their Secretary by every person making a claim to a grant of land which shall be referred by the Governor to the said Commissioners for examination as hereinbefore is provided the several fees specified in the Schedule to this Act annexed marked C and the said Commissioners or their Secretary shall duly account for all fees so paid to them or him as aforesaid and shall pay the same into the hands of the Colonial Treasurer of New South Wales or the Treasurer of New Zealand on the last day of every month or as soon thereafter as practicable to be appropriated to the public uses of the said Colony and in support of the Government thereof.
2 o—VOL. 2. 12. 12. Provided always and be it declared and enacted That nothing in this Act contained shall be deemed in any way to affect any right or prerogative of Her Majesty Her Heirs or Successors.
SCHEDULES REFERRED TO.
A .
Commissioner's Oath.
I do solemnly swear tha t faithfully diligently and impartially to the best of my ability I will execute the duties of a Commissioner appointed under and by virtue of a certain Act of the Governor of New South Wales with the advice of the Legislative Council of the said Colony made and passed in the fourth year of the reign of Her Majesty Queen Victoria int i tuled " An Act to empower the Governor of New South " Wales to appoint Commissioners with certain powers to examine and report on Claims to " Grants of Land in New Zealand" and tha t I will not myself directly or indirectly take or receive or knowingly permit any other person to take or receive any fee or reward for any th ing done or performed under and by virtue of any of the provisions of the said Act other than and except such as is authorized by the said Act .
So help me God.
Sworn before me this A. B .
day of 184 .
Judge of the Supreme Court of New South Wales.
B.
Secretary's Oath.
I do solemnly swear tha t faithfully diligently and impartially to the best of my ability I will execute the duties of Secretary to the Commissioners appointed under and by virtue of a certain Act of the Governor of New South Wales with the advice of the Legislative Council of the said Colony made and passed in the fourth year of the reign of Her Majesty Queen Victoria inti tuled " An Act to empower the " Governor of New South Wales to oppoint Commissioners with certain powers to examine " and report on Claims to Grants of Land in New Zealand" and that I will not myself directly or indirectly take or receive or knowingly permit any other person to take or receive any fee or reward for any thing done or performed under and by virtue of any of the provisions of the said Act and tha t I will duly account for and pay over to the Colonial Treasurer of New South Wales or the Treasurer of New Zealand on the last day of every month or as soon thereafter as may be practicable all fees previously received by me as in the said Act directed.
So help me God.
Sworn before me this C. D.
day of 184 .
Judge of the Supreme Court of New South Wales.
c.
Fees to be received by the Secretary.
£ s. d.
For filing any memorial with the Colonial Secretary
or opposition thereto . . . . . . . . . . . . 5 0 0 Five pounds
For every summons for witnesses each summons con taining two names by the party requir ing the same
0
5
0
Five shillings
For every witness examined or document or voucher
produced in evidence by the party on whose
behalf examined or produced . . . . . . . . . 0 5 0 Five shillings
For taking down the examination of any witness . . . 0 5 0 Five shillings
For every one hundred words after the first hundred 0 2 6 Two shillings
additional . . . . . . .. and sixpence For every certificate granted by Commissioners of
default refusal to answer or wilful withdrawing
of any witness . . . . . . . . . . . . . . . 1 0 0 One pound
For any final report to be paid by the party or parties
in whose favor made when the extent of the land
recommended be not exceeding five hundred acres 5 0 0 Five pounds
For every additional one hundred acres . . . . . . 0 10 0 Ten shillings.
D.
D.
Time when the Purchases were made. Per Acre.
S. d. s. d.
| From 1st J a n u a r y 1815 to 31st December 1824 | 0 | 6 |
1825 „ 1829 0 6 to 0 8 1830 „ 1834 0 8. to 1 0 1835 „ 1830 1 0 to 2 0 1837 „ 1838 2 0 to 4 0 1839 „ 1839 4 0 to 8 0
And fifty per cent. above these rates for persons not personally resident in New
Zealand or not having a resident agent on the spot.
Goods when given to the natives in barter for laud to be estimated at three times their selling price in Sydney at the time.
0
0
0